O Cannabis: Getting Into The Weeds Of Massachusetts’ Pot Bill

We’re no Nevada, but last week Massachusetts took two rippin’ steps toward weed legalization and protection in the state.
First the Massachusetts Supreme Judicial Court ruled that a business cannot fire an employee for being a medical marijuana patient — a decision that is causing headaches in HR offices around the state who claim it will be difficult to maintain drug-free workplaces. Then the Legislature passed a compromise bill on recreational marijuana sales and taxes.

Both come with conditions that will likely harsh your mellow a bit, but this is still cause for marijuana enthusiasts to celebrate, so smoke ‘em (indoors on private property with the owner’s consent and with less than 10 ounces in the dwelling) if you got ‘em.

I bring up Nevada because the state’s voters approved recreational marijuana on the same day as Massachusetts — Election Day 2016 — but unlike Massachusetts Nevada is already selling recreational marijuana. The Bay State isn’t allowing recreational sales until July 2018.

Many people have probably heard by now that the Massachusetts compromise marijuana bill sets the excise tax rate for marijuana at 10.75 percent, plus the 6.25 percent sales tax, a 3 percent optional local excise tax, and another 3 percent optional local impact tax. That means the highest tax someone can charge for medical marijuana would be 23 percent. (Medical marijuana will remain tax free.) In the 75-page piece of legislation, it was this bit of information that consumed the news cycle. The tax rate has been hailed by marijuana proponents as a good compromise.

But there’s more interesting news in that bill, as well.

“The thing I’m most pleased about,” says Dick Evans, a longtime marijuana advocate and lawyer dealing with weed law, “is the Legislature recognizes the historical error of prohibition; providing for new industry to be open to minority communities that have been so disproportionately victimized by prohibition.”

Evans noted that the legislation requires the Cannabis Control Commission, which will establish rules for the sale and purchase of recreational weed, to have experts in minority business development, minority-owned as well as women-owned businesses, and criminal justice reform on the commission.

“That’s where those voices need to be heard,” Evans says. “They need to be on the commission.”

The compromise bill also features some out-of-the-box thinking by politicians. The law provides towns with the ability to limit recreational marijuana activity based on how the communities voted on the pot question in the 2016 election. If the majority of people in town voted no on the marijuana question, then its elected officials can ban recreational marijuana facilities from town. If the majority of people voted yes, then only the people have the authority to ban marijuana by another townwide vote.

Under the bill, the state also promises to fund and support research into identifying whether people are impaired and under the influence of marijuana. This will come in handy for officers assessing someone’s loopy driving and possibly, employers who want to know if yesterday’s forklift crash had something to do with the fattie roach left in the employee smoking area.

The bill now awaits Gov. Baker’s signature.

New Workplace Protection

For me, though, the medical marijuana ruling is far more interesting. The case, Barbuto v. Advantage Sales, may be the first in the nation to protect an employee’s right to use medical marijuana in their off-work hours. And it has left employers with many questions and few answers.

Michael Cutler, a Boston attorney who works on marijuana law, says the court’s decision is going to make it difficult for future employers to prove an employee who uses medical marijuana, with approval from the state, is deficient.

“It appears to me that the employer will have a difficult burden to carry: Proving that Barbuto’s after-work MMJ [medical marijuana] use impairs her work performance, or poses an unacceptably significant safety risk to herself, fellow employees or the public; or, that her after-work MMJ use interferes with the maintenance of a drug-free workplace or results in the use of a controlled substance at the workplace.”

Chris Geehern, executive vice president of the Associated Industries of Massachusetts (AIM), says since the medical marijuana law passed in 2012, companies have been grappling with how to handle patient-employees. The new decision makes it more difficult and potentially dangerous, especially in jobs that involve transportation and/or heavy machinery.

“The complexity for employers is if someone shows up to run a … machine in a manufacturing plant and you, as the boss, need to know: Is someone firing on all cylinders?” Geehern says. “How do you deal with that especially since, unlike alcohol, you can’t have someone who takes medicinal marijuana, you can’t have that person blow into a breathalyzer?”

Medical marijuana patients have carte blanche to toke and work. The facts in Barbuto’s trial weren’t under much dispute, for starters. In 2014, Christina Barbuto was hired at Advantage Sales. She was told she would need to pass a drug test and she explained to her future employer that she would come up positive for marijuana, which she uses two to three times a week, at night, to treat her Crohn’s disease, according to the court case. The company said her use of medical marijuana wasn’t a problem. Barbuto took the test, came up positive, and worked a full day at the company. Following that first day, though, she was fired. Her employer’s human resources department said that because marijuana is illegal under federal law, she was being let go, court documents state.

Barbuto accused the company of discriminating against her based on her handicap (Crohn’s disease). She said the company made no effort to work with her on finding new medications or treatments that would better align with company standards, a requirement under the Americans With Disabilities Act.

Advantage Sale’s defense was a direct one: marijuana is illegal according to the federal government, Advantage Sales follows federal law. The court ruled existing discrimination and state marijuana law trounce that argument.
The ruling has gotten some positive feedback from the Massachusetts Growers Advocacy Council, a medical marijuana patient advocacy group.

“Basically, we are very happy about this ruling,” says Peter Bernard, Mass Growers’ president. “It sets the precedent that medical marijuana patients are a protected class of people. Society does not discriminate when someone needs opiates. We do not discriminate when someone needs to take other drugs.”

The problem for employers now is that many of them are drug-free workplaces, a status that can earn a company a break on insurance costs. Having medical marijuana patients working at a drug-free business could rescind the drug-free insurance perks. And employers also don’t have a clear cut way to gauge whether an employee’s medical use of pot is impairing his ability to work.

Massachusetts march toward normalizing marijuana is lurching forward in new and interesting ways other states have not tried. While it’s annoying that I can’t go to a store and buy an eight yet, I appreciate the thoughtfulness lawmakers are showing in creating a responsible system for getting heady nugs, bong rips, and high times to the masses.